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H.R. 5167 (110th): Justice for Victims of Torture and Terrorism Act

The text of the bill below is as of Sep 16, 2008 (Referred to Senate Committee).


HR 5167 RFS

110th CONGRESS

2d Session

H. R. 5167

IN THE SENATE OF THE UNITED STATES

September 16, 2008

Received; read twice and referred to the Committee on Armed Services


AN ACT

To terminate the authority of the President to waive, with regard to Iraq, certain provisions under the National Defense Authorization Act for Fiscal Year 2008 unless certain conditions are met.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ‘Justice for Victims of Torture and Terrorism Act’.

SEC. 2. FINDINGS.

    The Congress finds the following:

      (1) During the Gulf War against Iraq in 1991, Americans serving in the United States Armed Forces were captured, became Prisoners of War (POWs), and were subsequently tortured, beaten, starved, hooked to electrical shock devices, and subjected to other horrendous acts by Saddam Hussein’s regime.

      (2) CBS News reporter Bob Simon and cameraman Roberto Alvarez were kidnapped while on assignment during the 1991 Gulf War and were held and tortured, along with the American POWs.

      (3) Following the Iraqi invasion of Kuwait in August 1990, many United States citizens were detained by Iraq, beaten, subjected to cruel, inhumane and degrading treatment, confined under deplorable conditions, and used as ‘human shields’ for the avowed purpose of preventing the United States and its coalition allies from using military force to liberate Kuwait.

      (4) At the time these acts occurred, the Department of State had classified Iraq as a state sponsor of terrorism.

      (5) The brave American POWs and American civilian hostages have suffered long-term physical, emotional, and mental damage as a result of this brutal, state-sponsored torture and terrorism.

      (6) When the American POWs returned home after the Gulf War ended, they were given a hero’s welcome by then Secretary of Defense Dick Cheney, who told them, ‘Your country is opening its arms to greet you’.

      (7) During the Gulf War, the Congress unanimously passed resolutions condemning the brutal treatment by the Government of Iraq of captured United States service members, demanding that the Government of Iraq abide by the Geneva Convention regarding the treatment of prisoners of war, and stating an intention to hold Iraq accountable for the torture of American POWs.

      (8) In 1996, Congress passed an amendment to the Foreign Sovereign Immunities Act (FSIA) provisions of title 28, United States Code, so that torture victims like the American POWs and the American ‘human shield’ victims from the Gulf War could seek compensation for their injuries from terrorist countries, including Iraq.

      (9) On April 4, 2002, 17 Gulf War POWs and their families filed claims in the United States District Court for the District of Columbia seeking compensation for damages related to their torture and abuse by the Government of Iraq. The POWs included Colonel Clifford Acree, USMC (Ret.); Lieutenant Colonel Craig Berryman, USMC (Ret.); Former Staff Sergeant Troy Dunlap, US Army; Colonel David Eberly, USAF (Ret.); Lieutenant Colonel Jeffrey D. Fox, USAF (Ret.); Chief Warrant Officer 5 Guy Hunter, USMC (Ret.); Sergeant David Lockett, US Army; Colonel H. Michael Roberts, USAF; Colonel Russell Sanborn, USMC; Captain Lawrence Randolph Slade, USN (Ret.); Major Joseph Small, USMC (Ret.); Staff Sergeant Daniel Stamaris, US Army (Ret.); Lieutenant Colonel Richard Dale Storr, Air National Guard; Lieutenant Colonel Robert Sweet, USAF; Lieutenant Colonel Jeffrey Tice, USAF (Ret.); Former Lieutenant Robert Wetzel, USN; and Former Commander Jeffrey Zaun, USN.

      (10) In 2003, after the Government of Iraq repeatedly refused to participate in arbitration on the damage claims, and after hearing evidence of how the former POWs had been repeatedly tortured, a judge awarded them a judgment for damages, stating that ‘deterring torture of POWs should be of the highest priority’.

      (11) Despite this ruling, the POWs and their families have not received payment, and are unable to further pursue their claims in United States courts because of the waiver that was granted for Iraq by the President under authority established in the National Defense Authorization Act for Fiscal Year 2008.

      (12) In December 2001, after conducting an evidentiary hearing, the United States district court held, in Hill v. Republic of Iraq, that Iraq was liable for having taken United States citizens hostage following the Iraqi invasion of Kuwait and subsequently awarded 180 of those former hostages and their spouses a judgment for damages.

      (13) On March 20, 2003, on the eve of Operation Iraqi Freedom, the President of the United States directed that all of the judgments that had been awarded in Hill v. Republic of Iraq be paid from moneys held in blocked Iraqi accounts.

      (14) On that same date, the President issued an Executive Order confiscating all remaining blocked assets of Iraq and ordering them to be deposited into the United States Treasury to be used for Iraq reconstruction.

      (15) The claims of more than 200 United States citizens who, at the same time and in the same manner as the Hill plaintiffs, were held hostage in territory occupied by Iraq are currently pending in a United States district court in the case of Vine v. Republic of Iraq.

      (16) The plaintiffs in Vine v. Republic of Iraq have not been compensated and are unable to enforce any judgment they may obtain in United States courts because of the waiver that was granted for Iraq by the President under authority established in the National Defense Authorization Act for Fiscal Year 2008.

      (17) Article 131 of the Third Geneva Convention relative to the Treatment of Prisoners of War (August 12, 1949) prohibits the United States as a party to that treaty from absolving the Government of Iraq of any liability incurred due to the torture of prisoners of war, such as the American POWs referred to in this section.

      (18) The United States has a moral obligation to protect its past, present, and future members of its Armed Forces, and all United States citizens, from torture and hostage-taking, and the Congress is committed to holding state sponsors of terrorism accountable for such horrendous acts.

SEC. 3. RESOLUTION OF CERTAIN CLAIMS AGAINST IRAQ.

    (a) Resolution by Iraq of Certain Claims-

      (1) IN GENERAL- Unless the President, before the end of the 90-day period beginning on the date described in paragraph (2)(A), certifies to the Congress that the Government of Iraq has adequately settled the claims in the cases referred to in subsection (b), then, upon the expiration of that 90-day period, the waiver authority granted to the President in section 1083(d) of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181; 122 Stat. 343), and any waiver granted before the end of that 90-day period under such authority, shall terminate.

      (2) DATE DESCRIBED-

        (A) IN GENERAL- The date described in this paragraph is--

          (i) 30 days after the date of the enactment of this Act, unless the President has certified to the Congress, before the end of that 30-day period, that--

            (I) the Government of Iraq has not, before, on, or after the enactment of this Act, compensated any foreign persons or entities for claims or liabilities incurred by or under the control of the Saddam Hussein regime, including, but not limited to, commercial or financial claims, and claims for acts against individuals similar to those described in section 1605A(a)(1) of title 28, United States Code; or

            (II) negotiations are ongoing with the Government of Iraq to settle the claims in the cases referred to in subsection (b), and the President believes that those negotiations are being conducted in good faith and could lead to a satisfactory settlement of those claims; or

          (ii) if a certification is made under clause (i), the day after the date on which that certification terminates or, if a subsequent certification is in effect under subparagraph (B), the day after the date on which the last such certification terminates.

        (B) DURATION OF CERTIFICATIONS- A certification under subclause (I) or (II) of subparagraph (A)(i) terminates 180 days after it is made. The President may make subsequent certifications under subclause (I) or (II) of subparagraph (A)(i) for periods of not more than 180 days each.

    (b) Cases- The cases referred to in subsection (a)(1) are cases numbered 99:00CV03346 (TPJ), 1:01CV02674 (HHK), CIV.A. 02-632 (RWR) (July 7, 2003), 1:03CV00691 (HHK), and 1:03CV00888 (HHK), in the United States District Court for the District of Columbia.

    (c) Adequate Settlement- For purposes of subsection (a)(1), adequate settlement means payment by the Government of Iraq of, or an unqualified and unconditional guarantee made by a United States depository institution to pay within 30 days after the end of the 90-day period described in subsection (a)(1), at least the following amounts to the following persons:

      (1) To any person--

        (A) whose claim in the applicable case referred to in subsection (b) arose from an act of hostage taking or from being held in hostage status, and

        (B) who has not obtained a judgment on the claim before the date of the enactment of this Act,

      $150,000, plus $6,000 for each day the person was held as a hostage, but in no event more than $900,000.

      (2) To any person--

        (A) whose claim in the applicable case referred to in subsection (b) arose from an act of hostage taking or from being held in hostage status,

        (B) who, while a hostage, was subjected to torture, and

        (C) who has not obtained a judgment on the claim before the date of the enactment of this Act,

      $2,500,000, plus $6,000 for each day the person was held as a hostage.

      (3) To a plaintiff in the applicable case referred to in subsection (b) who is the spouse or child of any person who qualifies for receipt of payment under paragraph (1) or (2), one third of the amount that such person qualifies for receipt under such paragraph.

      (4) To any person who, before the date of the enactment of this Act, obtained a judgment for compensatory damages in a case referred to in subsection (b) (regardless of whether such judgment was subsequently vacated)--

        (A) payment of the unsatisfied amount of such judgment, in an amount that is the lesser of $1,000,000 or the unsatisfied amount of the award; and

        (B) if the amount of the judgment exceeds $1,000,000, one third of the unsatisfied amount of such excess.

    (d) Additional Condition in Case of Guarantee of Payment- If the claims in the cases referred to in subsection (b) are adequately settled for purposes of subsection (a)(1) because of a guarantee of payment by a depository institution within the 30-day period specified in subsection (c), and such payment is not made within that 30-day period, then upon the expiration of that 30-day period, the waiver authority described in subsection (a)(1), and any waiver granted before the end of that 30-day period under such authority, shall terminate.

    (e) Definitions- In this section:

      (1) FOREIGN PERSON OR ENTITY- The term ‘foreign person or entity’ means--

        (A) an individual other than a national of the United States; and

        (B) a person or entity, other than an individual, that is organized under the laws of a country other than the United States.

      (2) HOSTAGE- The term ‘hostage’ means an individual in hostage status or an individual seized or detained in the commission of an act of hostage taking.

      (3) HOSTAGE STATUS- The term ‘hostage status’ has the meaning given that term in section 599C(d)(1) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1991 (Public Law 101-513).

      (4) HOSTAGE TAKING- The term ‘hostage taking’ has the meaning given that term in section 1605A(h)(2) of title 28, United States Code.

      (5) NATIONAL OF THE UNITED STATES- The term ‘national of the United States’ has the meaning given that term in section 1605A(h)(5) of title 28, United States Code.

      (6) TORTURE- The term ‘torture’ has the meaning given that term in section 3 of the Torture Victim Protection Act of 1991 (28 U.S.C. 1350 note).

      (7) UNITED STATES- The term ‘United States’ means the several States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

      (8) UNITED STATES DEPOSITORY INSTITUTION- The term ‘United States depository institution’ means a depository institution organized under the laws of any State, the District of Columbia, or the United States, including a branch or agency of a foreign depository institution.

SEC. 4. LIMITATION ON CERTAIN CLAIMS.

    No funds of the United States Government may be used to pay any claim--

      (1) that is cognizable under section 1605A of title 28, United States Code, as added by section 1083 of the National Defense Authorization Act for Fiscal Year 2008, for money damages against Iraq for personal injury or death that was caused by acts committed by an official, officer, or employee of the Iraqi Government under Saddam Hussein; and

      (2) with respect to which the waiver authority under section 1083(d) of the National Defense Authorization Act for Fiscal Year 2008 has been or may be exercised.

Passed the House of Representatives September 15, 2008.

Attest:

LORRAINE C. MILLER,

Clerk.